Leandro case filings: Lawmakers say they're now providing a 'sound basic education'
North Carolina General Assembly leaders now believe they are providing a “sound basic education” to the state’s schoolchildren, while critics contend their actions still fall billions of dollars short, new court filings show.
School boards, families, civic groups and government leaders filed briefs in court Friday and Monday ahead of this week’s court hearing in the long-running Leandro school funding lawsuit. The filings are the first made in Superior Court by North Carolina General Assembly leaders in the nearly 30-year-old lawsuit.
New Leandro Judge Michael Robinson will consider the filings during a hearing Wednesday. After the hearing, Robinson will determine how to amend previous Leandro Judge W. David Lee’s order to move $1.75 billion in state funds to education agencies — an amendment that will affect what the North Carolina Supreme Court will weigh when it resumes authority over the case.
At stake is funding and policies for the 1.5 million North Carolina public schoolchildren and the nearly 200,000 full-time public school employees.
The filings and the hearing are the latest movements in the case, which has become more politically divisive as parties have begun to take action to remedy the deficiencies in the state’s education system identified in court in the early 2000s.
They raise questions on how much money the state has to spend, the separation of powers among North Carolina’s three branches of government, show differing priorities in how the state should fund schools and discuss a possible legal precedent for Robinson to consider.
The basis for the hearing this week is the new state budget approved in November. It funds less than the $1.75 billion called for this year and next year as a part of a plan approved in court last June to address the deficiencies, known as the Leandro Plan. That’s what Lee drew from in his November order to move the funds to education agencies, effectively bypassing the General Assembly by asserting the state’s Constitution demanded the appropriation of the funds.
“Under the State Budget, the State has once again failed to live up to its constitutional duty to provide the students of North Carolina with a sound basic education,” the Penn Intervenors argued. The Penn Intervenors are plaintiff-intervenors, and they include families of Charlotte-Mecklenberg Schools students.
Until late last week, Senate President Pro Tempore Phil Berger, R-Rockingham, and House Speaker Rep. Tim Moore, R-Cleveland, hadn’t previously disputed court findings that the state is not providing a sound basic education. They had said only that they disagreed with the Leandro Plan and Lee’s order.
But their recent filings indicate they believe their new budget has changed that conclusion. The new budget “more than adequately” funds a sound basic education, they argue. At the same time, their filing also argues no court has determined whether the new budget meets the criteria of a “sound basic education.”
“The Budget Act superseded and nullified the November Order in its entirety,” lawmakers’ filing reads.
Lee had determined the $1.75 billion called for in the comprehensive remedial plan — and the other nearly $4 billion in the plan — were what was required to meet the criteria of a sound basic education. That determination has not been appealed.
What’s not in dispute is that the amount of money in the state budget for new education spending does not equal the amount of money the Leandro Plan required.
What is and isn’t funded
The Republican-lead General Assembly passed the budget in November, and Democratic Gov. Roy Cooper signed it into law later that month. Cooper had initially proposed fully funding the Leandro Plan for two years. He reached a compromise with lawmakers that funded more of the Leandro Plan than either legislative chamber had proposed but still fell short of what the Leandro Plan called for.
The Leandro Plan, known in court as the comprehensive remedial plan, is an eight-year, more than $5.6 billion plan to remedy court findings that the state is not providing a “sound basic education” to North Carolina’s schoolchildren.
Judge W. David Lee, a democrat who was removed from overseeing the case and replaced with Republican Judge Michael Robinson in March, had ordered a $1.75 billion transfer of state money to fund two years of the plan on Nov. 10, just before the adoption of a new state budget.
Lawmakers listed several items in the budget after arguing the budget provides a sound basic education but did not expand on how those things provide a sound basic education.
Director of Fiscal Research Mark Trogdon, invited by Berger and Moore to provide his own fiscal analysis of the budget on the Leandro Plan, contends the budget funds $1.2 billion of the plan. That compares to just under $1 billion, as estimated by Kristin L. Walker, Chief Deputy Director of State Budget for the Office of State Budget and Management.
Trogdon’s estimate includes one-time federal stimulus funding, money for capital projects and funds for lead and asbestos testing and removal.
Those are not in the Leandro Plan, but lawmakers continue to oppose the Leandro plan and argue that a sound basic education can be provided in ways other than the Leandro Plan.
“Disagreements among the elected officials and branches of State government over how to educate the State’s children are nothing new,” they wrote. “They are fielded not just by political divisions, but sincere differences of opinion about what is best for the State’s children and how to improve its education system.”
The filings indicate at least some wiggle room in how the Leandro Plan is interpreted.
The Leandro Plan doesn’t include a fund for smaller or lower-wealth county salary supplements for educators. But the new budget includes $100 million for salary supplements in all but six of the state’s 115 public school districts. The six singled out — Buncombe County, Asheville City, Charlotte-Mecklenberg, Guilford County, Wake County and Durham County — were removed because of their size and associated tax base.
Both Walker and Trogdon include the $100 million as a Leandro Plan expense.
Most of the Leandro funding so far will go toward higher educator salaries, though the eight-year plan is mostly not meant for salary increases.
Much of what was not funded in the two years of the Leandro Plan at issue this week are extra funding for disadvantaged students or for employees who can provide more in-classroom and out-of-classroom support services for students and teachers.
The Leandro Plan called for $110 million more for students with disabilities, $13 million fo which was funded. It included $105 million more for “at-risk” students, $60 million more for low-wealth counties, $30 millionaire for English learners and $50 million more of teaching assistants to ensure one for every 27 kindergarten through third grade students. It also required $120 million more for support professionals, such as school nurses and counselors. The state budget included nearly $10 million for 115 new school psychologists.
“The State Budget reflects particularly significant shortcomings for at-risk students. Most concerning for Penn-Intervenors, it lacks any funding for provides only partial funding for students with disabilities, low-income students, and English learners.”
The Penn Intervenors wanted to see more funding for programs designed to help lift up high-poverty districts with low property wealth, such as funding for community schools or tuition reimbursement for teaching assistants training to become teachers.
Question of scope
The filings show a disagreement over what the scope of the hearing should be about and thus, what the North Carolina Supreme Court should consider when it reviews appeals of an ruling striking down a court-ordered transfer of $1.75 billion to three state agencies to fund two years of the so-called Leandro Plan.
The filings Friday and Monday largely don’t dispute facts. They show a debate among parties in the case over the scope of what they believe new Judge Michael Robinson has the authority to do.
Robinson himself has indicated he only intends to review ex-Leandro Judge W. David Lee’s order. That’s a narrower scope than what the lawmaker-defendants are asking for. But it’s still potentially a broader scope than what the plaintiffs and state-defendants are asking for.
Plaintiffs and state-defendants, in separate filings, argued Robinson has only been asked by the North Carolina Supreme Court to review the ways in which the new state budget alters Lee’s order. That’s a question exclusively related to how much money Lee ordered by transferred and not related to whether he had the authority to order the transfer to begin with, they contend.
Ultimately, the state Supreme Court will weigh the constitutionality of Lee's order, but only once Robinson reviews it.
The plaintiffs and state-defendants have for more than a year now been aligned on how they want to see North Carolina’s schools funded to achieve the state Supreme Court’s findings in the Leandro case.
But lawmakers, who filed to intervene in the case last fall, still don’t agree.
How much money does the state have?
A significant element of the plaintiffs’ and state’s arguments is that the state has more than enough money to fund the plan.
The dispute over how much money the state has stems from interpretations of which funds can be considered available.
State finance officials estimate having about $2.38 billion leftover after this year that’s neither appropriated nor reserved, and the budget sends another $2.27 billion into reserves.
Lawmakers, however, argue that the $2.38 billion left over will be used toward next year’s budget and that reserve funds are effectively appropriated funds. In the need, they note, the state will have little more than $100,000 to spend toward the rest of the Leandro Plan.
The state-defendants and plaintiffs argue reserves can fund the rest of the plan.
Examining a possible precedent
In a March 25 order, Robinson asked parties to address three things: how much of the Leandro Plan was funded in the new state budget, how much money will be in the state’s general fund after the budget is funded, how the state budget affects the fund transfer in the context of Richmond County Board of Education v. Cowell.
Richmond County Board of Education v. Cowell is another education funding lawsuit in North Carolina, which dealt with schools being denied funds owed to them under state law.
The Richmond County school board sued in 2012, alleging they were not receiving court fines and fees meant for schools, as outlined in the North Carolina Constitution.
Other lawsuits have made similar claims. Other school boards have sought more than $700 million in fines and fees meant for public schools that were never delivered to them.
But in the Richmond case, a Superior Court judge ordered the school board be made whole through a transfer of funds. In 2017, the North Carolina Court of Appeals reversed the order, because the money the school was entitled to had already been spent.
“Under long-standing precedent from our Supreme Court, the judicial branch cannot order the State to pay new money from the treasury to satisfy this judgment,” the appeals court wrote. The school board can only get the money it’s owed if the General Assembly were to appropriate it, the court wrote. The General Assembly did not do so.
General funds are at the discretion of lawmakers and emergency funds, the court wrote, are at the discretion of the executive branch. Neither are at the discretion of the judiciary branch.
“Moreover, commanding members of the Council of State and other executive branch officials to approve payment from this type of discretionary emergency fund is no less offensive to the Separation of Powers Clause than commanding the legislature to appropriate the money.”
Plaintiffs in the Leandro case contend the Richmond case doesn’t apply to what they’re asking for. In this instance, they argue, the money is available and Lee’s order did not ask for new money to be raised and appropriated; the Richmond case concerned an order of money that was already appropriated for other things and spent.
Lawmakers argue the principles of the Richmond case still apply, because a court cannot effectively appropriate state money; only the General Assembly can.
State Controller Linda Combs, who petitioned for the writ of prohibition that the Court of Appeals granted on Lee's order and which is now on appeal to the Supreme Court, continued to assert she does not have the legal authority to transfer state funds without an explicit appropriation from the General Assembly.
Attorney General Josh Stein, representing the state, argued that even the Court of Appeals decision in Richmond admits that courts have the right to ensure funds are being spent when their expenditure is outlined in state law or the Constitution.
The argument Stein has made, adopted by Lee in his order, is that the Constitution’s provision promising a free public education and equal opportunities for all students is equivalent to an appropriation made by law.
The Leandro Plan spans 57 pages and is drawn from conclusions on state law and research addressing those conclusions.
